Doping in Sport: What you do? Or Who you know?

On 1 January 2015 the World Anti-Doping Authority (WADA) rolled out its new and improved worldwide anti-doping code (i.e. the 2015 WADA Code). The purpose of the changes brought about by the new iteration of the Code was to:

allow more specifically for the individual circumstances of particular cases; and

improve the ability of anti-doping organisations to gather evidence and prosecute doping violations.

The Code’s provisions increased the depth and extended the breadth of factors that can be taken into account in establishing anti-doping violations, and determining the consequences for them.

A new violation was also introduced, that of Prohibited Association (Article 2.10). This new violation seeks to address the perceived problem of athletes working with support personnel (including coaches, trainers and physicians), who themselves are ineligible on account of their own anti-doping rule violations, or who have been subject to criminal or professional sanction that would have amounted to violations under the Code.

The putative reach of Article 2.10 is audacious. It prohibits athletes having associations with persons who may not be, or ever have been, subject to the terms of the WADA Code or any of the flow-down versions of the Code adopted by individual sports. Further, it makes it a violation for an athlete to associate with a person who acts as a ‘front or intermediary’ for another who is subject to the prohibition.

Clarity over the full reach and effect of Article 2.10 is only partially facilitated by a consideration of its precise terms.

First, before a violation is averred, the athlete in question must have previously been advised in writing by an anti-doping organisation with jurisdiction over that athlete of the prohibited person’s disqualifying status.

Secondly, Article 2.10.3 makes it clear the associations caught by the article are only those that can be ‘reasonably avoided’, and are in a ‘professional or sports-related capacity’.

But what is a relationship that can be reasonably avoided? And what is a sports-related capacity? Is the word ‘professional’ limited by the phrase ‘sports relate capacity’ which immediately follows it?

In some circumstances, the line of demarcation may be clear. In others, it will be obscure. For example, consider a situation where a professional athlete is directed by his or her coach, doctor or employer to attend a specific professional who in turn happens to be prohibited – is that an association that can be reasonably avoided? What if the athlete attends a prohibited GP for personal medical assistance for a condition unrelated to sport? Ultimately, in what type of diligence – whether formal or informal – must an athlete engage to ensure that he or she does not associate with a person captured by Article 2.10, or someone acting on their behalf as a ‘front’? The Code and WADA do not purport to answer these questions. Only through the testing of the Article in cases where the violation is alleged will clarity be obtained as to the precise boundaries of the violation.

The names appearing on the List are most likely there because they belong to persons who are captured, not by reason of serving a period of ineligibility under the Code, but because they have been sanctioned criminally or professionally beyond the jurisdiction of WADA.

For example, within the last month, the first two Australians have been added to WADA’s Prohibited Association List. At the request of the Australian Sports Anti-Doping Authority (ASADA) Anish Singh and Matthew Shane Pearce now appear on the List (at numbers 142 and 115 respectively). In its press release dated 8 November 2017,[1] ASADA stated that neither Singh nor Pearce were at any time subject to any relevant anti-doping Code. Their inclusion on the list is as a result of professional and criminal sanctions; the conduct underlying each would have been a violation under the WADA Code had it applied to them.

According to ASADA, Pearce has been entered onto the List in light of his previous involvement in Rugby League and his work as a personal trainer, and the fact that he was recently sentenced to a two-year suspended jail term for illegally importing steroids, growth hormone and testosterone.

Singh was a Perth-based doctor. ASADA have stated that he has been professionally sanctioned as a result of providing a variety of steroids, human growth hormones, stimulants and EPO to patients without medical justification. He has been banned from practising medicine for a period of 10 years.

WADA’s disclaimers accompanying the List are considerable. WADA purports to exclude all liability arising from the inclusion of any name on it. The stated aim of the List is to assist athletes in identifying persons who might be caught by the Prohibited Association proscription in the Code. However, when coupled with the disclaimers attached to the list, the utility of the List to this end must be questioned. Those disclaimers include the following:

WADA makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, or reliability of the Prohibited Association List, which is provided ‘as is’. Any reliance on any information contained in the Prohibited Association List shall be taken at the individual’s own risk.

Importantly, the List does not fulfil the requirement for written notice being provided to an athlete before any breach of Article 2.10 can be committed.

Time will tell whether the safeguards built into Article 2.10 are sufficiently robust to ensure that any athletes prosecuted under its terms are dealt with fairly, and in accordance with moral expectations as to just outcomes. The outer ambit of the terms ‘professional or sports-related capacity’ and ‘can reasonably avoid the association’ remain to be tested and set – as does the requirement that the athlete be advised in writing about the prohibited person’s disqualifying status. The Code is silent on whether that notice providing the advice needs to be personally or ordinarily served. Evidentiary questions may well arise as to whether the alleged notice was actually received.

The intentions informing the decision to include Article 2.10 in the WADA Code are readily apparent and noble: What anti-doping organisation would want athletes associating professionally or in a sports-related context with persons such as Michele Ferrari, or sports scientists like Stephen Dank? However, every iteration of the WADA Code since its inception has included provisions with similarly noble intent, many of which have resulted in a number of arguably unfair results for the inadvertent conduct of ‘innocent’ athletes. Athletes who never intended to ‘cheat’ have been found on the wrong end of Show Cause and Infraction notices, and ruled ineligible for years because absolute liability applies to what is found in their blood and urine.

Does Article 2.10 provide – within its own terms – the types of safeguards that one would expect before someone can be sanctioned for a violation? Or will we now find athletes removed from participation in sport due not only to what they do, but because of who they know?